By SHANNON HAUGLAND
Sentinel Staff Writer
Superior Court Judge Daniel Schally of Juneau heard arguments this morning in the Sitka Tribe of Alaska’s motion for an injunction against the Alaska Department of Fish and Game and Board of Fisheries, which the tribe says are not providing a “reasonable opportunity” for subsistence harvest of herring roe.
“(The Department) alleges it’s already doing this,” said STA attorney John M. Starkey. “They simply need to (provide evidence) to demonstrate how it’s doing that.”
The tribe is asking the court “to enter a preliminary injunction requiring ADFG to develop a fishery management plan prior to the opening of the commercial herring sac roe fishery in Sitka Sound during the 2019 season that is consistent with the ADFG responsibilities under subsistence laws and regulations and such other relief as the court deems just and proper.”
Starkey said what the tribe is asking for should not delay the opening of the fishery.
Schally presided by teleconference from Juneau, with some 30 Sitkans in the Sitka courtroom to follow the arguments through a sometimes noisy telephone hookup. Attorneys in the case also attended by teleconference and many others dialed in to listen to the proceedings, which were slowed down by the numerous times Schally had to ask those listening in to mute their phones or be quiet.
Dozens of Sitkans sit in on a subsistence herring case this morning at the Sitka Courthouse. (Sentinel Photo)
Attorney Seth Beausang, chief assistant attorney general, argued that the injunction the tribe is asking for does not address the issue of the “irreparable harm” that the tribe is claiming.
He argued that there were many reasons STA’s motion should be denied, one of which is that STA is not entitled to preliminary relief on an expedited basis, on an incomplete record and in advance of the opening of this spring’s commercial fishery.
Beausang noted the tribe is not seeking any changes in the management of this year’s fishery.
His comments were echoed by Michael Stanley, the attorney for the Southeast Herring Conservation Alliance, a fishing industry association, which is a co-defendant. He said the remedy the tribe is seeking will not result in more opportunities for the tribe.
“If there are no changes in management, how is that going to provide any more opportunity for subsistence users?” he asked.
The Sitka Tribe’s lawsuit also asks the court for a judgment declaring that the regulations adopted by the Alaska Board of Fish for the Sitka Sound herring fisheries “are invalid and illegal as violations of the state subsistence law, the Administrative Procedure Act, and Alaska’s constitution.”
The request stresses the importance of the subsistence harvest of herring roe for nutrition, and cultural and traditional uses.
Starkey said what the tribe is asking for is within the intent of the Board of Fisheries decisions related to the Sitka Sound herring.
“The clear intent of the Board is (that) the quality and quantity of the spawn on branches must be – shall be – considered in making management decisions,” he said in his rebuttal.
STA is claiming that Fish & Game’s management of the annual fishery, which is conducted primarily by commercial sac roe herring seiners, does not allow a reasonable opportunity for the traditional subsistence harvest, in which herring roe is gathered on hemlock branches placed in the water where the fish are spawning. The Board of Fisheries at various meetings over the last 16 years has responded to testimony from subsistence users by creating subsistence-only zones in Sitka Sound that are closed to commercial seiners.
Judge Schally said at the end of today’s nearly two hours of arguments that he expects to rule “as quickly as possible in writing.”
